Archives for May 2014

A domestic workers bill that was unanimously approved by the state senate appears likely to become law soon. The proposal substantially expands the rights of cooks, housekeepers, nannies and others who commonly work inside residential homes and appears to be aimed at curtailing perceived abuses of this class of employees.

Among the highlights of bill’s terms are requirements that domestic employees who work more than 40 hours weekly receive a 24-hour rest period each week and a 48-hour rest period each month; that workers who do not live in the home receive pay for each hour worked up to 24 consecutively; that sleep-time hours deductions for live-in workers along with meals and lodging expense deductions be in writing; and the grant of maternity leave rights. The bill also requires employers, which includes families who employ domestic workers, to keep records of wages paid and hours worked. It grants domestic employees privacy rights and a right to request job reviews. For live-in workers, the bill provides a required period of notice or severance when employment is terminated without cause. None of these proposed protections applies to babysitters.

The proposed law is now awaiting action by the state house of representatives.

Employee drug testing has always presented challenges for Massachusetts employers. Its invasive nature implicates worker privacy rights and, our courts say, limits when tests can be required, to whom, and how employers are permitted to handle results that are positive for drugs or alcohol. And then there are the questions that surround what those results demonstrate: Does every positive test mean an employee was under the influence of drugs on the job? Do employers have the legal right to terminate an employee based on an invasion of privacy that uncovers secrets about the worker’s private life?

Giving employers yet another reason for pause in this area, the U.S. Appeals Court that covers Massachusetts recently ruled not only that a group of workers can proceed with their claims drug tests discriminated against African Americans but that they just might win it. The employees filed what’s referred to as a disparate impact lawsuit – unlike an individual claim, its focus is on how an employer’s facially neutral practice affects different racial groups. Because the employees proved that hair follicle tests yielded positive results for blacks that were about four times higher than for whites, the employees won a substantial part of their case. They claim, of course, that the positive results they experienced, which led to job loss in most of their cases, were falsely positive. The employer, the City of Boston, will now lose the case unless its testing policy promotes its goal of identifying drug users among its police officers and no reasonable alternative to it exists.

Though private employers face less court scrutiny in the drug testing arena than do public ones, the court’s disparate impact ruling is nonetheless significant to them. Companies interested in implementing a policy should consider its implications along with other issues such as who may be tested; how a policy is implemented; testing protocols; and what they will do with employees who test positive. To be sure, drug testing of employees whose job duties implicate safety concerns remain legal in Massachusetts. Given the privacy issues they raise, however, testing programs can be costly and can expose employers to litigation regardless how well-thought-out they may be. For these reasons, they should be implemented with great care.

In what appears to represent a push to change the way states deal with disabled people from a young age through adulthood, the U.S. Department of Labor has pushed the State of Rhode Island to adopt a new approach aimed at helping the disabled lead productive lives in the workforce. Decrying what it calls inappropriate ‘segregation’ of the disabled in sheltered workshops and day programs, the Department first sued Rhode Island, then reached a settlement that will focus on mainstreaming handicapped people to the greatest extent possible.

Under the agreement, entered as a court order, Rhode Island will help disabled people find minimum wage or other jobs that match their interests and abilities; offer support for activities in community centers, libraries and other public settings; offer mentoring and other programs to help prepare high schoolers with developmental disabilities compete for jobs; and refocus expenditures from current, segregated facilities to the mainstreaming effort.

While the order affects only Rhode Island directly, it will almost certainly affect Massachusetts and other states. The Department of Labor estimates that nearly a half million Americans with intellectual and developmental disabilities are currently segregated in shelters and other programs. It plainly wants the changes it imposed in Rhode Island to be implemented across the country.